Rights Groups Slam Obama’s Restart of Guantanamo Military Commissions

Barack Obama, the U.S. president, has said military commissions for al-Qaeda suspects held at the Guantanamo Bay prison camp will be restarted.

Obama said new legal safeguards would be introduced to the system, including a ban on evidence obtained using “cruel, inhuman and degrading interrogation methods”.

“These reforms will begin to restore the commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law,” Obama said in a statement released on Friday.

Obama suspended the tribunals, which were set up by the administration of George Bush, his predecessor, soon after he took office in January and placed them under review.

The move is likely to affect the five detainees charged with having played key roles in the September 11, 2001 attacks on New York and Washington, including Khalid Sheikh Mohammed, who has been accused of planning the attacks.

Obama said he would also place restrictions on the use of hearsay evidence, so that the “burden will no longer be on the party who objects to hearsay to disprove its reliability”.

Detainees would have expanded rights to choose their own legal representation and basic protections provided for those who refuse to testify, he said.

The U.S. president also said he would work with congress “on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in Article III courts, for administering justice”. >>>

The Obama administration’s decision to revive military commissions for detainees at Guantanamo will prolong the injustice of Guantanamo, Human Rights Watch said today. The commissions will provide substandard justice, and will likely be beset by litigation and delays.

“The military commissions system is flawed beyond repair,” said Kenneth Roth, executive director of Human Rights Watch. “By resurrecting this failed Bush administration idea, President Obama is backtracking dangerously on his reform agenda.”

As a presidential candidate, Obama rightly called the military commissions at Guantanamo “an enormous failure.” On his second day in office, he suspended the commissions for 120 days and announced plans to close the detention center at Guantanamo within a year.

Today, the administration announced that it would resume trials of Guantanamo detainees by military commissions under new rules that would offer defendants greater legal protections. According to the administration, the new rules would prohibit the introduction of evidence obtained through coercion, tighten the use of hearsay evidence than under the existing military commission rules, and allow detainees greater choice in selecting defense lawyers.

Although the proposed changes to the commissions would be improvements, they do not address fundamental concerns about the flawed nature of such tribunals, Human Rights Watch said. The very purpose of the commissions was to permit trials that lacked the full due process protections available to defendants in federal courts.

Some of the most egregious problems of the military commissions are the result of starting a system from scratch. Because the rules of procedure were ad hoc and untested, it was difficult to prepare a defense. For instance, the system in place to provide discovery to defendants left defense counsel without access to critical – and in some cases possibly exculpatory – evidence. Many issues became subject to myriad legal challenges, resulting in long and unnecessary delays.

An inherent problem with the commissions is their lack of independence. Being part of the larger military structure, they are vulnerable to improper executive branch influence and control.

Another issue of concern is the commissions’ continued reliance on hearsay evidence. Although some defenders of the commissions have pointed to international tribunals’ relatively permissive rules on hearsay, a crucial distinction is that the triers of fact in such tribunals are judges – who know to properly discount the weight of hearsay – not laypersons, who do not. Human Rights Watch knows of no criminal justice system other than Rwanda’s highly discredited gacaca courts in which hearsay is admitted before a jury of non-lawyers, as would be the case with the revised military commissions.

The proposed rules on hearsay open the door to obtaining convictions (and possibly death sentences) based on the testimony of dubious witnesses, people whom the government will not need to produce in court, because their testimony can be conveyed via hearsay.

“The revived military commissions will be deeply tainted by the moral and political baggage of the old commissions,” Roth said. “The unhappy history of these commissions virtually guarantees that in future commissions the unfairness of the proceedings will distract from the gravity of the crimes.”

Human Rights Watch said that whatever marginal benefits the administration might see in obtaining easier convictions by using a substandard trial process will be vastly outweighed by the negative consequences of relying on the commissions. The United States can expect to face continuing international condemnation for restricting basic due process rights, and for failing to repudiate the legacy of Guantanamo. It will also discourage the international cooperation needed to successfully break up terrorist plots and apprehend terrorist suspects.

Human Rights Watch has long called on the US government to transfer the Guantanamo cases to US federal courts, where procedures that have withstood the test of time and litigation. Although critics assert that trials in US courts would jeopardize national security by exposing sensitive intelligence information, the courts are governed by carefully crafted rules that protect sensitive information from becoming public. Sheikh Omar Abdel-Rahman, implicated in the 1993 World Trade Center bombing, and Zacarias Moussaoui, implicated in the 9/11 attacks, were both tried and convicted in US federal courts.

“There is no good reason why the Guantanamo cases shouldn’t be tried in federal court,” Roth said. “In the more than seven years since the military commissions were announced, only three suspects have been prosecuted. The federal courts, by contrast, have tried more than 145 terrorism cases during the same period.”

“Today’s announcement is an alarming development for those who expected that the Obama administration would end Bush administration’s dangerous experiments with our legal system. As a candidate, President Obama condemned the existing military commissions as an overwhelming failure, and he was right to do so. He was also right to suspend the commissions within days of taking office. There is no reason to revive them now on the hope that piecemeal changes could create a legal system at Guantanamo equal to the U.S. criminal justice or courts martial systems.

“If the Obama administration has reliable evidence that anyone at Guantanamo committed an act of terrorism or a violation of the laws of war, that man should be prosecuted criminally in civilian court under our criminal laws, including the War Crimes Act, or in certain cases, in a court martial under the Uniform Code of Military Justice. The cost to our country – diplomatically, legally and financially – of reviving the disreputable military commissions and continuing the Bush administration’s tinkering with the law is simply too great.

“President Obama was elected to restore the rule of law, not continue to reinvent it. As prior military commissions demonstrated repeatedly, no matter how the rules are rewritten, any new system will be slowed by the same trial-and-error process and repeated trips to the Supreme Court that we have seen over the last several years. Any novel system is sure to stumble and fail, and in the process betray the seriousness of the issues at stake and the need to ensure fair and impartial justice. It will substantiate our allies’ ongoing loss of faith in the commitment of the United States to the rule of law, and undermine their willingness to help the Obama administration close Guantanamo.”

CCR brought the first lawsuit challenging the detentions at Guantánamo and since then has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men still at Guantanamo. In addition, CCR has been central to the efforts to secure humanitarian protection in safe countries for the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.